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The human right to the highest attainable standard of health

What does it mean to talk about the right to the highest attainable standard of health? How have our perceptions and our actions changed in the past few years?

Paul Hunt, UN Special Rapporteur on the right to the highest attainable standard of health (2002-2008) shares his perspective.

The foundations for the fundamental human right to the highest attainable standard of health (also known as the right to health) are in the Universal Declaration of Human Rights. The right is in major legally binding international human rights treaties that countries have drafted and chosen to sign up to. It is part of what is known as the International Bill of Rights. Until 2000, however, it was not clear what the right to the highest attainable standard of health meant. In that year, a group of international experts agreed a document, called General Comment 14, which sets out in some detail what is understood by this human right. These experts were chosen by governments but, once appointed, were independent. They drew upon international human rights, as well as good health practices. They benefited from the expertise of the World Health Organization (WHO) and civil society organisations. The right to health provisions of most international treaties are only a few sentences, whereas General Comment 14 has 65 paragraphs. It transformed the right to the highest attainable standard of health from a slogan to something that can make a constructive, concise contribution to health-related policies, programmes and practices.

What does this human right consist of? Briefly, it encompasses medical care, as well as access to safe drinking water, adequate sanitation, a safe working environment, access to health-related information and education and other critical pre-conditions of good health. Moreover, it places an obligation on governments to address discrimination and inequality. The right to the highest attainable standard of health requires governments to enhance access for disadvantaged individuals, communities and populations. In other words, it has a social justice component. It also requires that governments put in place arrangements that facilitate the active and informed participation of those affected by health-related policies, programmes and practices.

Crucially, the right to the highest attainable standard of health is subject to progressive realisation, i.e. no government is expected to realise it overnight – or even in 10 years – but to progressively work towards its realisation. This means we need indicators and benchmarks to measure whether or not progress is being made. The right to health is also subject to resource availability. In other words, more is demanded of Canada, than of Chad. Independent monitoring and accountability are crucial elements of the right to the highest attainable standard of health. Too often today, the same body is responsible for delivering and regulating health-related services, as well as holding those responsible to account; from the right to health perspective, this is problematic. At the core of the right to health is an equitable, integrated, responsive, effective health system that is accessible to all and of good quality.

This human right is not just the preserve of international human rights systems. It is enshrined in the WHO constitution, Declaration of Alma-Ata, Ottawa Charter for Health Promotion and other important documents agreed by the health community. Over the last six years, the UN General Assembly and the UN Commission (now Council) of
Human Rights has routinely received reports on numerous aspects of the right to health, including water and sanitation, the Millennium Development Goals, maternal mortality, the skills drain, access to medicines, the right to health responsibilities of pharmaceutical companies and so on.

Numerous constitutions and other national laws include the right to the highest attainable standard of health. Of course, some of these provisions are little more than adornments. But some are not. Some are giving rise to important cases that are leading to improvements in health-related services. For example, the Colombian Constitutional Court recently ordered a phased re-structuring of the country’s health system by way of a participatory and transparent process based on current epidemiological information. The Court’s decision relies upon the right to health.

The right to the highest attainable standard of health, as well as other health related rights are now being taken seriously at the international, national and local levels. There can be no doubt that the right to the highest attainable standard of health encompasses social determinants, particularly poverty and discrimination. This fundamental human right places legal obligation on governments to tackle social determinants where they harm health.
As the UN and many others have devoted more attention to the right to health over the last ten years, new human rights tools and techniques have been developed, as articles in this issue of Health Exchange show. We no longer only think in terms of taking test cases in the courts, letter-writing campaigns and ‘naming and shaming’ – although these continue to have an important role to play. Additionally, we use indicators, benchmarks, impact assessments, budgetary analysis and so on. Accountability is now understood to be so much broader, and more subtle, than judicial accountability, which is accountability of the last resort. There are other forms of accountability such as national human rights institutions, public inquiries, local health councils, regional health conferences with grassroots participation, maternal health audits or reviews and so on. Human rights accountability is not just about blame, sanction and punishment. It is about finding out what works, so it can be repeated, and what does not, so it can be revised

Paul Hunt UN Special Rapporteur on the right to the highest attainable standard of health (2002-2008)
Professor of Law, Human Rights Centre, University of Essex